Benjamin G. Shatz
Partner
Manatt, Phelps & Phillips LLP
Appellate Law (Certified), Litigation
Email: bshatz@manatt.com
Benjamin is a certified specialist in appellate law who co-chairs the Appellate Practice Group at Manatt in the firm's Los Angeles office. Exceptionally Appealing appears the first Tuesday of the month.
Those who practice in the Ninth Circuit know what a special court it is. The court is vast, ranging from the arctic to the tropics, from the mountains to the farmlands, from the deserts to the sea. It's the biggest circuit by far, not just geographically, but in its number of judges and its expansive administration. To wit, the Ninth Circuit has 29 judgeships and 23 senior judges, whereas the next largest in these categories are at 17 active judges (the 5th) and 15 senior judges (the 2d). The Ninth Circuit spans 15 districts (the 8th Circuit ranks next at 10 districts) and has the biggest volume of work (over 8,000 filings, whereas the next closest, the 5th, is only just over 5,000).
Ninth Circuit practice forms its own galaxy, with its own forms, local rules, administrative orders, general orders, mediation program, and much more. Those who practice here accept it all as normal and as natural as the air we breathe. And yet, peering east, other galaxies can be glimpsed. What are they like?
A means to answer that question now exists. Judge Jon O. Newman of the 2d Circuit and Duke Law Professor Marin K. Levy have done the appellate bench and bar a tremendous service by writing Written & Unwritten: The Rules, Internal Procedures, and Customs of the United States Courts of Appeals (Cambridge Univ. Press 2024). This concise paperback of only 181 pages now allows lawyers to learn about federal appellate courts they don't know, and allows federal appellate judges to learn about how their sister courts operate on a detailed level. And? Voilà! Vive la différence!
The book explores the local rules, internal operating procedures, and unwritten practices in the 13 different federal circuits, i.e., the courts that are the last word in 99.7% of all federal appeals. Those 13 courts all "do" the same things: file briefs and motions, have oral arguments, and decide writs and appeals. And they all do it in roughly the same way. But the devil (and the fun) is in the details. The authors gathered information not just by comprehensively scouring the public documentary record, but also by interviewing chief judges and court clerks. They then endeavored to highlight significant and interesting variations.
The book has 16 chapters covering topics such as administrative structure, chief judges, senior judges, judicial councils and conferences, court websites, and miscellaneous provisions. There are also chapters of particular interest to practitioners, addressing motions, briefing, calendaring, oral argument, opinions (precedential and non), en banc procedures, and more. This month's column will focus on the more "inside baseball" areas about the courts and judges. Next month's column will zero in more on practice-related chapters.
Starting at the top and at the start, chapter 1, titled, The Chief Judge of a Circuit, book explains that a circuit's chief judge is the judge with the most seniority, who is active (as opposed to on senior status), who has never served as chief judge before, and is not over the age of 64. 28 U.S.C. § 45(a)(1). A chief judge's term is seven years (28 U.S.C. § 45(a)(3)(A)), but that time can be cut short because no chief judge may be over age 70 (45 U.S.C. § 45(a)(3)(C) (unless no other circuit judge is qualified to serve as chief)). Chief judges have many duties, which are generally the same in all circuits.
Most chief judges take reduced caseloads to accommodate their chief judge duties. This is consonant with Ninth Circuit General Order 3.2(b), which notes that the chief judge "may have fewer panel sitting days than other active judges," i.e., usually about half of the standard caseload. But because a chief judge sits on all en banc hearings, and the Ninth Circuit can have as many as 20 of those a year (more than any other circuit), the chief judge's caseload ends up approximating that of other active judges anyway.
Skipping ahead to senior judges (chapter 13), federal judges are eligible to "go senior" upon reaching age 65 with 15 years of service, or age 70 with 10 years of service. 28 U.S.C. § 371(c). Between 65 and 70, the "rule of 80" applies, allowing an active judge to take senior status if the judge's age and years of service total 80. As of 2022, there were 111 sitting senior appellate judges, and 21.8% of appeals that year had a senior judge on the panel. Perhaps considering the potentially grueling travel required in the sprawling Ninth Circuit, it has a unique rule providing that senior judges will not be assigned to hear appeals away from their home chambers unless they are willing to do so. Gen. Order 3.2(c). Senior Judges can generally choose the number of days and cities where they will sit, and can opt not to serve on motions panels, screening panels, and death penalty appeals. Gen. Order 3.2(c), 6.2(a).
The Ninth Circuit also has a unique rule regarding the disposition of a judge's personal papers. Gen. Order 12.13. Another unique rule is that after seven years, a Ninth Circuit judge may request a one-year "sabbatical" that reduces assignments to five monthly calendars with three consecutive months without calendar duties. Gen. Order 3.2(k). Only up to three active judges may take such a sabbatical in a given year.
Also, former court employees may not participate in cases that were pending in the court during their period of employment, although former employees acting as attorneys may apply for an exemption. 9th Cir. Rule 46-5.
All the courts have websites, but the Ninth Circuit's is unique in having a Mission Statement. The Ninth Circuit's website also has a particular robust section for "Legal Guides" with information on appellate jurisdiction, standards of review, and general practice.
In terms of "Administrative Structure" (chapter 2), the Ninth Circuit has the most extensive administrative structure of them all, including a Judicial Council, as well as an Executive Committee and about 25 other committees. See Ninth Circuit 2023 Annual Report, p. 6 (listing standing, education, and ad hoc committees). The Executive Committee acts on nearly all administrative matters. It generally meets four to six times a year, and is composed of the chief judge, another judge eligible to be chief judge during the current chief's term, the three judges who head administrative units, a senior judge "drawn by lot" from those willing to serve, and three other active judges willing to serve (drawn randomly). General Order 10.1(a). (The only other circuit to have an executive committee is the Third, though the Second has a de facto ExCom, consisting of the chief judge and the next two judges in line to become chief.)
Under 28 U.S.C. § 41, any federal court with over 15 active judges may create administrative units. Only the Ninth Circuit has done so (the Fifth and Sixth Circuits having opted not to), creating a Northern Unit, Middle Unit, and Southern Unit. G.O. 1.11. The most senior active judge in the administrative unit (willing to serve) is the administrative judge of the unit, handling a variety of administrative duties relevant to the districts within the unit. The Ninth Circuit is also unique in having (created in 1994) an Appellate Commissioner position. Analogous to a district court's magistrate judge, this is a court-appointed position, and the commissioner decides or makes recommendations on a variety of non-dispositive matters. The only other circuit with something comparable is the D.C. Circuit's "special assistant to the chief judge."
The cover for Written & Unwritten has dramatic color photographs of courthouses in the First, Second, Fourth, Fifth, Seventh, Eighth, and Ninth Circuits. Appellate nerds should be able to identify each at a glance. But the book vividly shows that recognizing a court from its public building is only the tip of the iceberg when it comes to their differences. Tune in next month for more practitioner-focused nuances that make the Ninth Circuit special.